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9/11 cases: Do broad constitutional rights apply to Guantánamo detainees?

US Supreme Court has identified some rights that apply to terrorism suspects at the US detention camp. At a pretrial hearing at Guantánamo, detainees' lawyers argue that the Constitution should be presumed to be in effect during war-crimes trials.

By Staff writer / October 18, 2012

Detainees in orange jumpsuits sit in a holding area under the watchful eyes of Military Police at Camp X-Ray at Naval Base Guantánamo Bay, Cuba, during in-processing to the temporary detention facility in this January 2002 photo.

Courtesy of Shane T. McCoy/DoD/Reuters

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Fort Meade, Md.

US constitutional rights should be presumed to apply at the historic war crimes tribunal of alleged 9/11 mastermind Khalid Sheikh Mohammed, defense lawyers argued on Thursday in a pretrial hearing at Guantánamo.

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Lawyers for Mr. Mohammed and his four alleged co-conspirators urged the judge presiding over the military commission to issue a pretrial order proclaiming that the five alleged terrorism suspects on trial are presumed to enjoy the same level of constitutional protection they would receive in a US federal courtroom.

The lawyers told the judge, US Army Col. James Pohl, that if a dispute arose over whether to afford a constitutional protection to the defendants, it should be up to government lawyers to prove that the right doesn’t apply at the US Naval Base at Guantánamo Bay, Cuba.

Under the current situation, it will up to defense lawyers to prove that the specific constitutional right at issue does apply at Guantánamo.

“We are not asking for a blanket declaration that every constitutional provision imaginable applies at Guantánamo Bay,” said James Connell, a lawyer for Ali Abdul Aziz Ali. Instead, he said, defense lawyers are asking the judge to adopt a presumption that the Constitution applies to the proceedings.

“Aren’t you asking me for an advisory opinion?” Judge Pohl asked, referring to the practice that judges avoid issuing broad legal pronouncements about hypothetical issues.

“No sir. I'm asking for a procedural framework,” Mr. Connell replied.

The issue of what rights Mohammed and his codefendants will enjoy while on trial is a controversial question. The Bush administration decided to locate its Al Qaeda detention camp, and the military commission’s multimillion-dollar courtroom, at Guantánamo in part because it is beyond the jurisdiction of US courts and their mandatory application of constitutional standards.

Nonetheless, in a series of rulings, the US Supreme Court has established that at least some constitutional rights apply to detainees at Guantánamo. But it is unclear how many rights apply.

At one point, the Obama administration decided that Mohammed and his codefendants should be put on trial in federal court in New York City, complete with full constitutional protections. That decision was later rescinded. The case against Mohammed was returned to Guantánamo.

Now, the question is, which constitutional rights will apply at Mohammed’s war crimes tribunal.

Prosecutors argue that Judge Pohl should avoid making any broad pronouncements about what rights may or may not apply in a Guantánamo-based war crimes tribunal. They say Pohl should wait until a specific dispute arises that is tied to a specific defendant. 

“Our position is that Congress clearly did not intend that every constitutional right would apply to the accused in military commissions at Guantánamo,” said Clayton Trivett, a Justice Department lawyer on the prosecution team.

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